Canada's Re-emerging Division of Powers and the Unrealized Force of Reciprocal Interjurisdictional Immunity

Dwight Newman

Abstract

In recent decades, up to the middle of the first decade of the twenty-first century, Canadian division-of-powers jurisprudence seems to have been in a period of quiescence, with modern doctrine imposing few constraints on the federal government's implementation of national programs. In this paper, the author argues that adopting provincial interjurisdictional immunity as the Supreme Court of Canada clearly chose to do in the Canadian Western Bank case and other cases, must imply further changes to recent federalism doctrine, potentially including the reaffirmation of spheres of genuine provincial exclusivity or even provincial paramountcy.